United States District Court, W.D. Oklahoma
L. RUSSELL UNITED STATES DISTRICT JUDGE
a state prisoner appearing pro se, filed this action
pursuant to 28 U.S.C. § 2254, seeking a writ of habeas
corpus. Pursuant to 28 U.S.C. § 636(b)(1)(B) and (C),
the matter was referred to United States Magistrate Judge
Bernard Jones for preliminary review. On March 21, 2017,
Judge Jones issued a Report and Recommendation wherein he
recommended the Court deny the Petition. The matter is
currently before the Court on Petitioner's timely
objection to the Report and Recommendation, which gives rise
to the Court's obligation to conduct a de novo
review of those portions of the Report and Recommendation to
which Petitioner makes specific objection. Having conducted
this de novo review, the Court finds as follows.
was convicted in the District Court of Comanche County on a
single count of murder, the jury concluding that Petitioner,
in administering what he considered appropriate discipline to
his ten-year old stepson, caused injuries that resulted in
Malik Ray's death. The District Court of Comanche County
sentenced Petitioner to life imprisonment. He contends that
errors in the course of the trial rendered his conviction
unconstitutional. The Magistrate Judge considered each of the
claims and concluded they lacked merit under the relevant
standard of review set forth in the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”).
That is, Petitioner is not entitled to relief on any claim
addressed by the Oklahoma Court of Criminal Appeals unless
its decision was contrary to or an unreasonable application
of clearly established federal law or was based on an
unreasonable determination of the facts in light of the
contends throughout his briefing that the Oklahoma Court of
Criminal Appeals did not actually address the issues, because
the orders affirming Petitioner's conviction and denying
his request for post-conviction relief do not sufficiently
explain the court's reasoning. As a result, he contends
the Court should not apply AEDPA deference to the Oklahoma
Court of Criminal Appeals' rejection of his various
claims. As noted by Judge Jones in the Report and
Recommendation, “[w]hen a federal claim has been
presented to a state court and the state court has denied
relief, it may be presumed that the state court adjudicated
the claim on the merits in the absence of any indication or
state-law procedural principles to the contrary.”
Harrington v. Richter, 562 U.S. 86, 98 (2011).
“As every Court of Appeals to consider the issue has
recognized, determining whether a state court's decision
resulted from an unreasonable legal or factual conclusion
does not require that there be an opinion from the state
court explaining the state court's reasoning.”
Id. (citations omitted). This Court “owe[s]
deference to the state court's result, even if its
reasoning is not expressly stated.” Aycox v.
Lytle, 196 F.3d 1174, 1177 (10th Cir.
1999). With the standard in mind, the Court turns
to Petitioner's objections to the Report and
Ground One Petitioner argues the medical examiner's
opinion did not comply with the Federal Rules of Evidence nor
the Oklahoma Rules of Evidence, which therefore denied him
the equal protection of the laws. He argues:
Pertaining to the question of quantitative analysis or any
kind of test to determine blood and fluid lost into tissues,
the Reynolds Army Community Hospital Emergency Room Physician
(RACH) (ER) testified, “once we gave blood, there's
no way to know what it was after that point.” (Prelim.
Hearing Tr. 33 lines 22-25; 34 lines 9-10).
Pertaining to the question of “were you told how much
additional blood or how many additional fluids Malik was
given as part of his treatment?” The Medical Examiner
testified, “No Sir.” (Tr. III 72 Lines 14-16).
The RACH ER Medical Records -Progress Notes reveals a total
of 1400ccs of Normal Saline in addition to the two units
(2x500 mls bags) of packed red blood cells were given - to a
patient with “no lacerations or breaks in this
skin” (Prelim H. Tr. 27 line 19). Nonetheless, the M.E.
testified “those injuries [bruises] they were
associated with blood loss in tissues. . .” (Tr. III 61
Petition, p. 6. This issue was not raised on direct appeal,
which Petitioner blames on the ineffective assistance of
appellate counsel. The Report and Recommendation recommends
denial of the claim because it lacks merit. In his objection
Petitioner contends the Magistrate Judge misconstrues his
claim and attempts to clarify same, arguing that the
emergency room physician who first treated Malik committed
malpractice which resulted in the improper administration of
blood and saline, which resulted in the hemorrhaging
identified by the Medical Examiner. Although Petitioner
premised the argument in his Petition on the fact that Dr.
Yacoub, the medical examiner, was not told about the
administration of blood and fluids during his emergency
treatment, his contention is apparently that Malik was
suffering from neurogenic shock, not hypovolemic shock.
Because his shock was not caused by insufficient blood to
fill the circulatory system, Petitioner contends the blood
and saline administered were detrimental to Malik's
is no trial testimony regarding the type of shock for which
Malik was treated. The following testimony by the treating
physician, however, supports the State's theory that
Malik's death was the result of the discipline inflicted
Q: How did Malik appear to you other than not having a heart
rate, did you see any physical signs?
A: Well, there was extensive bruising throughout the body,
both arms, both legs, his chest. There was a bruise on his
forehead. And it was so severe that we were -we asked what
had happened to him, was he hit by a car, and that was when
the defendant, Mr. Ray, stated that he had whipped him.
Tr. Vol. I, p. 243-44.
Q: When you were putting the fluids into his shins, why were
you doing that?
A: Well, the appearance of him with the multiple bruisings
made him a trauma patient. My concern initially was I have to
address what I believe is the cause for what's going on.
And so we started infusing fluids to try to re-expand his
blood volume. We gave him normal saline which is a fluid very
similar to the electrolyte content of the body. And then as
soon as it was available, we infused two units of red blood
cells. Shortly after the two units of red blood cells were
infused into him that he got a heartbeat. That was about, one
document said 45, but I remember being more like 60 minutes
Tr. Vol. I, p. 247-48.
Q: Well, why were you giving him blood?
A: Well, there was just so much bruising that when you looked
at - - when you assess a patient and you try to figure out
why they're in the state they're in, you take the
visual cues and the historical information that's
provided to you by the parents or in this case by the parents
and any other people that are around to contribute to
what's going on. And clearly this child had trauma. There
was - - I said earlier that I've been in emergency
medical services since 1979. Part of that time, I picked up
bodies for the medical ...